IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Michael D. Lenoir, 

 

Petitioner, 

 

v. Case No. 2:11-cv-0342 

 

Warden, Richland Correctional JUDGE PETER C. ECONOMUS

Institution, Magistrate Judge Kemp

 

Respondent. 

 

OPINION AND ORDER

This matter is before the Court on petitioner’s objections to a Report and

Recommendation issued by the Magistrate Judge on December 22, 2011. The Court, having

reviewed the record de novo, finds for the reasons set out below that the objections to the Report

and Recommendation are without merit. Petitioner’s objections are OVERRULED and the

Report and Recommendation is ADOPTED. 

I. 

When objections are received to a Magistrate Judge’s Report and Recommendation on a

dispositive matter, the assigned District Judge “shall make a de novo determination ... of any

portion of the magistrate judge’s disposition to which specific written objection has been made

....” Fed. R. Civ. P. 72(b). After review, the District Judge “may accept, reject, or modify the

recommended decision, receive further evidence, or recommit the matter to the magistrate judge

with instructions.” Id.; see also 28 U.S.C. §636(b)(1)(B). General objections are insufficient to

preserve any issues for review; “[a] general objection to the entirety of the magistrate's report has

the same effects as would a failure to object.” Howard v. Secretary of Health and Human

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Services, 932 F.2d 505, 509 (6th Cir. 1991). 

II.

As is relevant to petitioner’s objection, petitioner was convicted of second-degree felony

cocaine possession and first-degree heroin possession following the recovery of a mixture of

material found in a sweatshirt, later found to contain both cocaine and heroin. He was sentenced

under the penalty enhancing provisions of R.C. §2925.11(C) for possession of 100.7 grams of

heroin, a first-degree felony. In his petition, petitioner set forth one claim for relief asserting that

there was insufficient evidence to support his conviction for a first-degree felony because the

State did not prove the precise amount of each individual drug recovered from the sweatshirt.

In the Report and Recommendation, the Magistrate Judge recommended that petitioner’s

sufficiency of the evidence claim be denied on its merits because the State appellate court had

not unreasonably applied the standard of Jackson v. Virginia, 443 U.S. 307 (1979). In reaching

this conclusion, the Magistrate Judge discussed at length the penalty enhancing provisions

under Ohio law that provided the focus of petitioner’s claim. The Magistrate Judge also

discussed Ohio courts’ interpretation of these statutes noting that, contrary to the petitioner’s

claim, the State is not required to prove the specific concentration of each drug. The Magistrate

Judge, focusing on the testimony regarding the weight and contents of the mixture provided by

the State’s expert, the Director of the Ohio State Highway Patrol Crime Lab who performed the

analysis on the material found in the sweatshirt, concluded that the requirements of Jackson

were met. 

The Magistrate Judge also noted the argument set forth in petitioner’s traverse which

relied on State v. Gilliam, 192 Ohio App.3d 145 (2d Dist. 2011), and questioned the weight of

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the mixture at issue. As explained by the Magistrate Judge,

Petitioner argues, relying on State v. Gilliam, 192 Ohio App.3d 145 (2d Dist.

2011), that there was insufficient evidence to demonstrate that the mixture at

issue weighed 100.07 grams because, he contends, the plastic weighing trays and

the baggie containing the mixture were included in the weight. In Gilliam, the

state appellate court concluded that the jury verdict finding that the defendant had

purchased 1,000 grams of cocaine was against the manifest weight of the

evidence where testimony indicated that the cocaine was weighed while wrapped

in packaging secured with duct tape. The court of appeals found that the "jury

necessarily speculated" to determine the weight of the cocaine itself. Gilliam is

of no help to the petitioner here. First, the Gilliam court correctly construed the

issue as one involving the manifest weight of the evidence and such a claim is not

cognizable in a federal habeas proceeding. See Walker v. Engle, 703 F.2d 959,

969 (6th Cir. 1983). Further, even assuming that this Court could consider such

an issue, there is no evidence to support petitioner's position that the weight of

100.07 grams included the weight of the trays and the baggie. 

III. 

In his objection, petitioner merely reiterates his insufficiency of the evidence claim but

does not expressly object to any of the Magistrate Judge’s findings. Moreover, much of 

petitioner’s objection appears to be a verbatim restatement of portions of the Report and

Recommendation. This, standing alone, is sufficient reason to overrule petitioner’s objection. 

See Drew v. Tessmer, 36 Fed. Appx. 561 (6th Cir. 2002)(“The filing of vague, general, or

conclusory objections does not meet the requirement of specific objections and is tantamount to

a complete failure to object.”); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)(“The

objections must be clear enough to enable the district court to discern those issues that are

dispositive and contentious.”). 

At best, a generous reading of petitioner’s objection suggests that he may be arguing that

the Magistrate Judge was persuaded that there was insufficient evidence regarding the weight of

the mixture. As petitioner states on the last page of his objection, 

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The R&R acknowledged the “jury necessarily speculated” to determine

the weight of the cocaine itself regardless if it was mixed with heroin. Without a

scintilla of evidence to demonstrate the weight of the drugs exceeded 100 grams

without the tape plastic wrap and plastic scales, there is sufficient (sic) evidence

that establishes the Petitioner was in possession of over 100 grams of

cocaine/heroin mixture and a conditional writ should be issued. 

To the extent that petitioner is making such an objection, it is based on a misreading of the

Report and Recommendation. As indicated above, the Magistrate Judge’s reference to jury

speculation was made in the context of explaining the holding in Gilliam and its inapplicability to

petitioner’s claim. The Court finds completely without merit petitioner’s suggestion that the

Magistrate Judge concluded that the jury speculated about the weight of the drugs involved in

petitioner’s case. Further, the Court agrees that Gilliam does not provide any support for

petitioner’s claim in this case. Consequently, petitioner’s objection will be overruled. 

IV.

The Court has conducted a de novo review of the petition and agrees with the Magistrate

Judge that the petition lacks merit and should be dismissed.

V.

For the reasons stated above, petitioner’s objections (#17) are OVERRULED. The

Magistrate Judge’s Report and Recommendation (#13) is ADOPTED and AFFIRMED. This

action is hereby DISMISSED. 

IT IS SO ORDERED.

 

/s/ Peter C. Economus, March 1, 2012 

PETER C. ECONOMUS

UNITED STATES DISTRICT JUDGE

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